The inequity of conscientious objection: Refusal of emergency contraception

Introduction

The method of practicing medicine and decision-making is multifactorial and often combines science, politics, ethics, and one’s religion that may play a key role in a provider’s model of practice in provisions of various reproductive healthcare services. As one example, some providers and pharmacists in the United States have claimed conscientious objection in order to not dispense emergency contraception medications. The topic of emergency contraception has been proven to be a commonly debated, controversial issue with a history of conscientious objection. Many issues within the sexual and reproductive healthcare field, including emergency contraception, are being featured as one of the main policy points for politicians running in efforts to become the democratic primary candidate in the 2020 presidential race. This issue is highly relevant and personal for many women, or people with female reproductive organs, across different ethnic backgrounds, socioeconomic statuses (SESs), and religions. This article will first define conscientious objection and provide a historical context for the concept. Comparisons will be made in regard to how other developed countries are facing conscientious objection in their own medical communities and the impacts it has on their societies. Claims supporting the practice of refusing to dispense emergency contraception based on conscientious objection will be documented. The purpose of this article will come to focus in the final discussion section detailing the effects of providers enacting conscientious objection while refusing to dispense emergency contraception, because the policy negatively affects lower SES communities, highlighting specifically the negative effects it has on people of color. The consequence of living by one’s conscience and having the advantage of being able to choose to conscientiously object to providing legal and ethical medical services is limiting and negatively impacts less privileged groups of people.

Conscientious objection defined

The use of conscientious objection based on religious beliefs can be defined and applied differently based on the source of definition. One such definition is offered by Mark R. Wicclair, a professor at West Virginia University where he currently teaches Bioethics in the Master of Arts program and received a PhD from Columbia University, along with having published two books on the topic of conscientious objection. Wicclair provided this definition:

In the context of healthcare, physicians, nurses and pharmacists engage in acts of conscientious objection when they: (1) refuse to provide legal and professionally accepted goods or services that fall within the scope of their professional competence, and (2) justify their refusal by claiming that it is an act of conscience or it is conscience-based. ¹

Another definition is provided by Robert F. Card, a professor of Philosophy at the State University of New York Oswego, who serves on the editorial board of Bioethics and also provides a clear definition of conscientious objection, stating, “these are objections to providing this therapy [providing emergency contraception] based on genuine religious or moral reasons that are intended to preserve a provider’s integrity.” ² The two scholars agree that there is a refusal of providing services to patients. The reasoning which Wicclair calls “acts of conscience” and Card calls “religious or moral reasons” both arrive at a similar theme of acting based on one’s personal conviction and belief system. This act of refusal is not related to providing medical interventions which are outside of the strictly outlined scopes of practice guidelines of their professional field. Rather, the intervention is within the profession’s scope of practice and they would otherwise be able to complete such actions, if it were not for their personal belief systems.

In application of the general definitions of conscientious objection above, to the more specific topic of refusing to provide emergency contraception, it is important to explain the definition of conscientious objection for which this article will be referencing. This attempts to describe the most accurate and clear description of how conscientious objection is applied in the medical field while discussing specific aspects of sexual and reproductive healthcare services. For the purposes of this article, the following proposed definition of the use of conscientious objection to refuse to provide emergency contraception should be applied throughout: Conscientious objection refers to any action, or lack thereof, resulting in the refusal of services which are ethically and legally permitted within one’s medical profession, wherein the needed service is refused based on the claim that execution of such service would go against one’s morals, religion, or strongly held belief system.

History of conscientious objection

Conscientious objection based on religious beliefs was first introduced to America in World War II as a means for allowing soldiers to actively participate in the war without having to fulfill the more violent, previously required, aspects of war. Soldiers would implement the practice of conscientious objection by refusing to hold and fire weapons in basic training and while serving in active duty. ³ Following the war, an adaptation of this policy was applied to the healthcare field in terms of restricting services for patients in the field of sexual and reproductive healthcare based on religious and moral objections. For nurses, aspects of conscientious objection have made it into the profession’s code of ethics. The American Nurses Association has the following documented in their code of ethics policy published in Provision 5.4 “Preservation of Integrity: Acts of conscientious objection may be acts of moral courage and may not insulate nurses from formal or informal consequences.” ⁴ For providers and pharmacists, conscientious objection began being claimed while refusing to dispense emergency contraception to patients requesting the medication.

Only shortly after emergency contraception was approved for use in the United States did it encounter involvement with the legal system. In 2007, Washington state was the first state to amend their originally long-standing regulation, stating, “Pharmacies have a duty to deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices approved by the US Food and Drug Administration (FDA) for restricted distribution by pharmacies, or provide a therapeutically equivalent drug or device in a timely manner,” further limiting a pharmacist’s ability to object to administering medication based on person beliefs. ⁵ This law was challenged years later in Stormans, Inc. v. Wiesman, but was declined to be reviewed by the Supreme Court on 28 June 2016, leaving the current law in place for Washington state.

A few years following Washington’s amendment, in 2010 the Patient Protection and Affordable Care Act was enacted into law under the Obama administration. This law required employers to provide their employees with health insurance coverage that included companies that paid for many types of reproductive contraception, including emergency contraception. This law held for 4 years; then in 2014, it was struck down in a controversial and ultimately very close five to four ruling in the Burrell v. Hobby Lobby Stores, Inc. made by the US Supreme Court. This new ruling supports for-profit corporation’s right to refuse to provide health coverage with insurance companies that includes contraception, if they state the objection was on religious grounds. ⁶ As researchers Yang and Sawicki highlighted in their 2017 paper, there was another case in 1990 which made it easier for the Supreme Court to protect conscientious objection based on religious beliefs burdened by federal law, and not by state law in the 1990 Employment Division v. Smith ruling.

Although the Supreme Court ruled in favor of corporation’s right to claim conscientious objection in 2010, by declining to review the case in 2016, they ruled against conscientious objection allowances for pharmacists in Washington state years later. These two rulings somewhat contradict each other in terms of how much the Supreme Court values the rights of providers and pharmacists to claim conscientious objection. In the United States, the current rule of law allows for companies to refuse to provide health insurance to their employees if they permit coverage for contraceptives. Contrary to that ruling, according to the law at the time of this writing, it mandates that pharmacies are required to provide emergency contraception to individuals with valid prescriptions within a short period of time.

Physiology of emergency contraception

Emergency contraception can be taken by any person with the ability to become pregnant after a session of unprotected vaginal intercourse. Commonly known as the “morning after pill” or “Plan B,” it can be taken as a means of preventing conception. The pill should be used as soon as possible after unprotected intercourse or known contraception failure and will be ineffective if used 120 h after the event. ⁷

Emergency contraception has been proven to prevent or delay an individual’s ovulation in order to disrupt conception. The goal of this is to prevent ova from being released from the ovary so that sperm do not have access to them. The inhibition or delay of the released ovum will allow time for the potential sperm to expire. There is disruption in the opportunity for sperm to meet ova, thereby decreasing the chance of fertilization. It is important to note that emergency contraception’s pharmacological function indicates there is no damage to or potential harm toward an already fertilized ovum. There is no pharmaceutical effect on an ovum that has already been fertilized. Thus, emergency contraception should not be considered an abortifacient as its only effect is to delay ovulation. If a person has already ovulated, the use of emergency contraception will have no effect on the potential for fertilization.

There are a number of brands of emergency contraception available that ideally should be used as soon as possible after the session of unprotected vaginal intercourse. The sooner the pill is taken, the more potential efficacy the pill will have on preventing fertilization. Timing is important when it comes to the efficacy of the medication because the goal is to prevent ovulation. The sooner it is absorbed in the body and can start its mechanism of action, the more likely the ovulation has not occurred and can be prevented. The longer one waits to take emergency contraception, the higher the chance of ovulation, thus making the emergency contraception effects obsolete. One brand may be used up to 5 days after unprotected vaginal intercourse.

United States versus Europe

Within the United States, the use of emergency contraception in people with female reproductive organs is common and has been increasing since the FDA first approved the medication in 2006 for people above the age of 18. In fact, more than half (56.1%) of the people with female reproductive organs have used the medication at least once in their lifetime. ⁸ Exactly one-quarter (25%) have used the product twice and 19.1% of people with female reproductive organs have used it three or more times. Based on these numbers, the chance of every person having someone in their own family who has used emergency contraception, at least once in their lifetime, is highly likely. Thus, the issue of conscientious objection may be deeply personal and meaningful for everyone, and the basis for maintaining access to the product is important for the majority of people with female reproductive organs and people who care about them.

The use of emergency contraception is not limited to any one community. According to research conducted by the National Center for Health Statistics, non-Hispanic White people make up only 17% of the total use. ⁶ Hispanic women make up the biggest population of people with female reproductive organs who take emergency contraception at 22%. Non-Hispanic Black women also make up a significant amount of the use and are even with non-Hispanic White women at 17%. Based on these statistics, people of color would be negatively impacted, not simply just as much, but rather more than non-Hispanic White women, by the practice of conscientious objection in regard to dispensing emergency contraception.

In 2013, the FDA approved behind-the-counter use of emergency contraception without a prescription with proof of age in the United States. Comparatively, there are 23 countries/regions in Europe where people have access to emergency contraception without a prescription from a provider and is available over the counter. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. ⁹ Having emergency contraception available in so many countries over the counter increases access for many people, including those without many recourses and time required to go to a provider first to obtain a prescription. This also means improved access for people of lower SES to obtain emergency contraception. According to a research study conducted by the Health Behavior in School-aged Children across 11 countries/regions in Europe during 2006, it was determined that out of the participating countries, France had the highest amount of emergency contraception use during their last sexual intercourse experience at 17.8%. ¹⁰ This indicates that in France, not only are people who identify as female using emergency contraception, but also fundamentally about one-fifth of these women had used emergency contraception the last time they had sex.

Much earlier than the United States, Spain introduced emergency contraception to the market in 2001. It then became available to individuals without a prescription from a provider above the age of 18 in 2009. ¹¹ Currently, in Spain, emergency contraception is available to some individuals at no- or low-cost in many public health centers because the healthcare industry recognizes having the medication available at a cheaper cost increases the level of access. Cost is an important factor when discussing the epidemiology of emergency contraception use. Having the medication at no- or low-cost increases the likelihood a person from a lower SES has the ability to obtain it. There is also a high cost on the healthcare system in general when rates of unintended pregnancies are high. According to a report published by the Guttmacher Institute, in 2010 the total estimated US government cost for unintended pregnancies was $21 billion. ¹²

The definition of conscientious objection is applied similarly abroad in European countries as it is applied in the United States. It remains essential that a provider or pharmacist using conscientious objection while refusing to provide emergency contraception must be doing so because they believe the action goes against their moral believes. As a general practice and policy, it is also found to be pertinent as one of the basic aspects of freedom in a democratic society. ¹³ Similar to the United States, the issue of conscientious objection is widely debated in Europe, and many individual practitioners have strong beliefs both for and against a provider’s or pharmacist’s right to use conscientious objection when it comes to dispensing emergency contraception. One study conducted with Norwegian medical students found that most of the support for conserving the right to use conscientious objection was in regard to the abortion procedure, not in regard to dispensing emergency contraception. ¹⁴ Even among students who supported the right to conscientious objection, only 4.9% stated they would only exercise this right when it came down to referring for abortion services and not when dispensing emergency contraception.

According to one study conducted in Poland in May 2012, out of the 126 pharmacists participating, 92% stated they have never refused to fill a prescription due to their beliefs. This group of pharmacists includes 75% (95 participants) who identify as belonging to the Catholic Church. ¹⁵ This informs the public that the majority of those pharmacists who identify with the Catholic religion are still not using conscientious objection to refuse services to individuals. One of the main findings of this study was that most participants (74%) believe that pharmacists should not have the right to use conscientious objection when it comes to emergency contraception use. Even further, within the 26% who believe that there should be a right to proclaim conscientious objection, 14 of the 31 participants assert that a pharmacist who refuses to dispense emergency contraception should be required to offer another reasonable option to the patient with the ability to obtain it within time-sensitive manner.

Arguments supporting conscientious objection with emergency contraception

Arguments from supporters of conscientious objection based on religious values mostly originate from religious belief systems, such as Christianity and Catholicism. Some health professionals have strongly held views and beliefs supporting conscientious objection because they feel it should be within a person’s right to refuse to do something they believe goes against their moral code. It is a common theme within the Christian and Catholic faith that all attempts should be made to preserve human life when it comes to procreation. This principle often includes refusing to support contraceptive rights, such as limiting access to emergency contraception. As an example of support for conscientious objection, researchers Ancell and Sinnott-Armstrong argue in one of their manuscripts that “no blanket prohibition against conscientious objection in medicine is tenable.” ¹⁶ Those in agreement with this concept are individuals and groups who provide support for conscientious objection with emergency contraception, and they argue that the practice values moral integrity, encourages separation of church and state, and allows for increased religious diversity. ¹⁷

The first argument described in this article for conscientious objection with emergency contraception supports the precedent that it is based on upholding a provider’s moral integrity. This is done by allowing the provider to object to a practice that they feel is truly against their moral belief system, and if conducted, it would damage their own moral integrity. Then, by objecting to provide emergency contraception, it alleviates any feelings of guilt or responsibility which would ensue if the provider dispenses a medication that is against their own belief system. ¹⁸

Second, the separation of church and state is supported by claims that it should be up to each individual to state how they would like their population to be able to practice their religious beliefs and apply them to aspects of sexual and reproductive healthcare within their own jurisdictions. Essentially, if a provider would like to refuse to prescribe EC to a patient, they should be able to do so on religious beliefs, without having the government control their actions based on laws enacted without their support.

The last argument supporting conscientious objection that this article will be discussing is the argument for allowing conscientious objection with emergency contraception based on increasing the amount of religious diversity in the medical field. ¹⁹ The practice of allowing conscientious objection with emergency contraception may encourage a broad selection of candidates to enter the field of healthcare because they offer other benefits to the healthcare field beyond this one specific use of conscientious objection with emergency contraception. This claim argues that there needs to be a voice dedicated to religions which oppose emergency contraception as one of its core beliefs, when speaking about the application of conscientious objection in the medical field.

In an effort to compromise, there are arguments suggesting an implementation of a limited form of conscientious objection with emergency contraception. A common proposal is to allow pharmacists to deny providing emergency contraception based on their own core religious and moral beliefs; however, they would also be required to refer that patient to a pharmacy that will dispense the medication. ²⁰ This belief system is flawed in many ways which mostly impact people of color and communities of lower SES, discussed further below.

Inequity of conscientious objection with emergency contraception

On the premise of conscientious objection’s application within the medical field, there can be agreement that conscientious objection as a complete notion should not be banned outright. However, the application of refusal to dispense emergency contraception for people wishing to obtain it should be questioned because it is not equitably justifiable in regard to the impact it would have on different groups of people. There would be a significantly higher impact on people of color if conscientious objection was increasingly or universally practiced in regard to prescribing or administering emergency contraception. The first argument above stating the right to refuse to dispense emergency contraception based on a provider’s moral integrity is in itself an extreme point of privilege. Many people with less privilege are not allotted the option of choosing a more respectable choice, and all that remains is the best option of an otherwise unfortunate situation. Conscientious objection with emergency contraception may limit and ultimately force a different, less desired, choice on people who are disadvantaged, resulting in an unwanted pregnancy.

The entire purpose of emergency contraception is to prevent ovulation, which has the same mechanism birth control pills have. The only difference between emergency contraception and combined hormonal contraceptives, aside from the increased dosage of levonorgestrel emergency contraceptive pill (ECP) and ulipristal acetate, is the increased time sensitivity. ²¹ Conscientious objection with emergency contraception delays access to medication that needs to be taken as soon as possible. People with more privileges will be able to obtain emergency contraception if desired within a quick time frame because they have increased financial and other recourses. Those who would be most affected by the refusal to provide emergency contraception based on conscientious objection are people in rural communities with less access to healthcare facilities, people of lower SES, and people of color.

For rural communities, transportation can be a barrier to obtaining emergency contraception in general, which may only be complicated further by conscientious objection and refusal to treat. If the proposal explained above of offering a referral to another pharmacy was implemented, the lack of having public transportation access to another pharmacy is a counter to that compromise. There is less access-to-services in rural areas with lower rates of medical services in general, and by forcing individuals to seek services which are even further away is a strain on the individual financially. To complicate things further, in a cross-sectional telephone survey conducted for the state of Pennsylvania, only 32% of the pharmacists called had emergency contraception in stock. ²² The researchers also highlighted the difference in hours of operation between Pennsylvania rural and urban pharmacies, finding that urban pharmacies were more likely to have late hours (93% vs 63%). This means access to emergency contraception in a timely manner is less likely to exist in rural communities.

Refusing to dispense emergency contraception to individuals at a pharmacy forces them to travel to another pharmacy, which puts the patient at risk of not obtaining the medication which is medically indicated to solve their unwanted condition. This referral process should not be permitted, revolving around the issues that arise mostly for people of lower SES. There are financial implications involved in travel, no matter which form of transportation a person uses based on choice or lack thereof. If a person has a car and chooses to drive, there are financial obligations in terms of maintaining a functioning car and providing gasoline to drive it. According to the US Department of Transportation, the average cost of owning a vehicle per year, assuming an average of 15,000 miles are driven each year, is $9282 annually. ²³ If a person chooses not to drive or does not have access to a vehicle, there are financial implications associated with taking public transportation as well. One must pay a fee for transportation services, no matter the form of transport, in order to travel to a pharmacy. If that pharmacy then refuses to dispense emergency contraception and rather refers them to a different pharmacy, there is another increase in financial demand on this individual. People with little access to funds, that is, individuals with lower incomes, would be mostly affected by this process. Contrary to the argument above, supporting states’ rights to implement conscientious objection with emergency contraception is not equitable because not everyone has the privilege of having access to the financial resources they might need to live in a state where their right to emergency contraception was not being obstructed by the pharmacy profession. One would need the resources to be able to travel to a different state to obtain emergency contraception if the law allows conscientious objection in their current state. Furthermore, it would have to be within a reasonable amount of time for best efficacy, which is not easy for people with limited resources.

Overall, people of color are more at risk of being penalized under conscientious objection with emergency contraception than their White counterparts. The Guttmacher Institute published results on research conducted on the rates of unintentional pregnancies based on a person’s race. The data showed that compared to their White counterparts, Hispanic women were more than twice as likely, and Black women were just under three times as likely, to experience an unintended pregnancy. ²⁴ More people of color are experiencing unintentional pregnancies; thus, they represent a large group who may need access to emergency contraception at some point in their lives. If people with female reproductive organs had access to emergency contraception easily, without experiencing a provider enacting conscientious objection, the rate of unintentional pregnancies has the possibility of trending down. One study found that in the year 2000, with the use of emergency contraception, an estimated 51,000 pregnancies were averted, resulting in a massive decrease in the rate of unwanted pregnancies. ²⁵ With the practice of conscientious objection to provide emergency contraception in place, people of color have less of an opportunity to prevent unintentional pregnancy.

Continuing with issues predominately affecting people of color, according to the US census, a report published from 2016 data showed that the poverty rate of White, non-Hispanic population was 8.8%. The population of Black individuals below the poverty line was 22%, Hispanic was 19.4%, and Asian was 10%. ²⁶ The data collected reflect the inequitable effect of conscientious objection with emergency contraception or that the referral policy would have based on a person’s race. If a person seeking emergency contraception is in a lower SES, they are more likely to be unable to afford transportation to another pharmacy, after the first pharmacy refused to dispense EC as outlined above. Since there is a higher poverty rate in communities of color compared to White communities, people of color are consequentially more likely to live in under-resourced communities that have fewer medical services and less access to other providers who are not using conscientious objection to dispense emergency contraception.

Conclusion

Providers and pharmacists may elect for conscientious objection based on their religious beliefs because they believe emergency contraception effectively ends the potential for human life from unnatural causes, and by evoking conscientious objection with emergency contraception, they may feel they are cleared from what they believe is against their religion and moral standards. The definition of conscientious objection was demarcated, a historical context was provided, and compared to other developed countries, the United States’ controversy over its implementation is inequitable and the practice should not be implemented in the medical field due to the negative results it would have in regard to dispensing emergency contraception to people who need it. It is the focus of this article to highlight the potential damage that refusal does to people who are currently living in lower SES community groups and the lives of people of color. These communities are more at risk of the harmful effects of more travel and increased financial expenses when conscientious objection with emergency contraception is enacted by providers and pharmacists. For it is the essence of training for many years to become and practice as a medical provider or a pharmacist to have the moral responsibility of being someone that helps others in need. By proclaiming conscientious objection to dispensing emergency contraception, professions in privileged occupations go against their ethical responsibility to help those less fortunate then themselves.